The Happy Birthday Song May be Free From Copyright (for the time being)

If you have ever been to one of those loud, family restaurants, you will likely have heard some version of the well-known Happy Birthday song.  The reason for all the restaurant-variations is that Warner/Chappel Music, Inc. held the copyright in the Happy Birthday song and would require a royalty before any public performance of the song (“public performance” is one of the rights granted by a copyright, with the others being reproduce, display, distribute and create derivative works).  Now, a federal district court has ruled that no reasonable jury could find that the author of the song assigned her rights to Warner/Chappell’s predecessor.  Without a chain of title showing how the ownership of the copyright in the song transferred from the creator of the song to Warner/Chappell, Warner/Chappell cannot claim copyright infringement which means we can publicly perform Happy Birthday.

BUT, this decision may be appealed.  In an appeal, Warner/Chappell will likely claim that the court did not give the assumption of validity to Warner/Chappell’s copyright registration for the Happy Birthday song (the deposit with the copyright registration is lost so there is no certainty as to what exactly was covered by the registration, i.e. was it musical arrangement only or the lyrics too).  In the meantime, the legal theory of non-mutual collateral estoppel will likely prevent Warner/Chappel from enforcing its “claimed” copyright.  So, feel free to sing-away just stay-tuned in case things change.

For a lovely history of the author’s creation of the song and her assignments, check out Eric Goldman‘s blog on the decision.


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